Duke filed arguments Monday in its appeal of the Title IX case brought by a former female placekicker, arguing that a lower court's decision last October to award Heather Sue Mercer, Trinity '98, $2 million in punitive damages was a "miscarriage of justice."
The 64-page brief, filed in the 4th Circuit Court of Appeals, details the events of Mercer's football career at the University and denies that her experience caused her any pain warranting reparation. In 1997, Mercer first alleged that then-head football coach Fred Goldsmith treated her differently from male members of the team.
Duke attorney John Simpson, from the Washington, D.C.-based firm Fulbright and Jaworski, declined to comment on the case. In the brief, he argued that the punitive damages were unnecessary and excessive.
"Title IX is designed to ensure that federal funding is not used for purposes of discrimination and to protect victims of discrimination," he wrote. "It is not designed in any sense to punish violators of Title IX."
Burton Craige, Mercer's attorney, could not be reached for comment. Mercer must file a response to the arguments within 30 days of receiving them.
In addition to claiming that Title IX violations do not warrant punitive damages, the brief stresses that Mercer did not provide enough evidence to justify the penalty, that Duke was denied due process and that at the very minimum, there should be a new trial. It also argues that Duke should not have to pay nearly $400,000 in Mercer's legal fees.
"The remarkable $2 million punitive damage award deprived Duke of due process of law and constitutes a miscarriage of justice," Simpson wrote. "Duke lacked fair notice that it could be subject to such a severe punishment for its conduct."
Mercer tried to walk onto the football team as a freshman in 1994 but was told to try again. In 1995, she kicked the game-winning field goal in the annual Blue-White scrimmage, leading Goldsmith to name her to the team. But in the fall of that year, he put Mercer on the team's inactive roster, a list never before used.
Unlike other team members, Mercer was not invited to play on the scout team and was prohibited from dressing out for home games. The University says it was Mercer's kicking ability, not her gender, that motivated Goldsmith. Mercer's case was initially dismissed by a district court, but on appeal in 1998 she won the right to a new trial.
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